Lenaghan v Spalding [2005] ACTSC 72 (15 July 2005)

Last Updated: 11 August 2005

JAMES LENAGHAN v ANTHONY SPALDING

[2005] ACTSC 72 (15 JULY 2005)

APPEAL - appeal from Magistrates Court - plea of guilty to charge of common assault - appeal against sentence - whether Magistrate failed to take the appellant's intoxication into account as a mitigating factor - whether sentence imposed was too harsh - whether Magistrate addressed the issue of rehabilitation - De Semoni principle - whether appellant consented to periodic detention order

Crimes Act 1900 (ACT) ss 26, 342

Periodic Detention Act 1995 (ACT), s 6(1)(f)

The Queen v De Simoni (1981) 147 CLR 383

Sales v Shakespeare [2001] ACTSC 49

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 15 OF 2005

Judge: Tamberlin J

Supreme Court of the Australian Capital Territory

Date: 15 July 2005

IN THE SUPREME COURT OF THE )

) No SCA 15 OF 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JAMES LENAGHAN

Appellant

AND: ANTHONY SPALDING

Respondent

ORDER

Judge: Tamberlin J

Date: 15 July 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The next period of periodic detention is to commence on Friday 22 July 2005.

IN THE SUPREME COURT OF THE )

) No. SCA 15 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JAMES LENAGHAN

Appellant

AND: ANTHONY SPALDING

Respondent

Judge: Tamberlin J

Date: 15 July 2005

Place: Canberra

REASONS FOR JUDGMENT

TAMBERLIN J:

1. This is an appeal from a decision of Magistrate Soames. The defendant, James Lenaghan, pleaded guilty to a charge of common assault under s 26 of the Crimes Act 1900 (ACT) ("the Act") upon a Mr Gardner and was sentenced by Magistrate Soames to 36 periods of periodic detention.

2. The circumstances of the assault are spelt out in an Australian Federal Police Statement of Facts. In substance, the assault involved the following facts.

3. Mr Gardner answered a knock at his front door and James Lenaghan, the defendant, started to shout at Mr Gardner. He was, according to the Statement of Facts, intoxicated and aggressive in his manner at the time and wanted to know if Mr Gardner was called Joe Smith. The defendant then struck Mr Gardner several times in the head with both his left and right clenched fists, causing Mr Gardner to stumble backwards. Mr Lenaghan then followed Mr Gardner into the house.

4. At the time, Mr Lenaghan was in the company of two unidentified men.

Mr Lenaghan accused Mr Gardner of bashing someone called Anthony, now known to the police as the defendant's nephew, and he asked again if Mr Gardner's name was Joe. Mr Gardner informed him that his name was not Joe and that he didn't know what Mr Lenaghan was talking about. When the three men then entered the house, the other occupant of the house was Ms Fox, who was standing about 3 metres away in the kitchen. Ms Fox moved towards the living room and started to scream for the men to stop fighting and to get out of the house. One of the men moved towards her and restrained her.

5. Mr Lenaghan then followed Mr Gardner into the living room with another male and Mr Gardner tried to locate his wallet in order to prove his identity. Mr Lenaghan then struck Mr Gardner several times in the head with both clenched fists. Mr Gardner fell to the floor and was kicked in the upper back and in the stomach area by Mr Lenaghan and the other male. During this time, Mr Lenaghan made further remarks about him bashing Anthony.

6. After realising that Mr Gardner was not Joe Smith, the males left the premises. Mr Gardner then contacted the police. While the police were in attendance, Mr Gardner's father arrived and the police took statements from Mr Gardner and Ms Fox.

7. As the police were returning to Woden Station, they were informed that the three men had returned to the premises. The men left before the police arrived at the premises. The police were able to identify the vehicle that the offenders were driving as belonging to the defendant's brother-in-law. As a result of arrangements made on Monday 23 August 2004, Mr Lenaghan contacted the police and arranged to take part in a Taped Record of Interview. Mr Lenaghan made full admissions to the assault. He stated that he had assaulted the defendant because his nephew had been assaulted earlier and that he was intoxicated at the time.

8. This appeal is against the sentence of Magistrate Soames on the conviction. Instead of sentencing the defendant to imprisonment, Magistrate Soames ordered that he was to complete 36 periods of periodic detention and, within two months, pay court costs of $54.00 and a levy of $50.00.

9. I have had the benefit of detailed written submissions from the appellant and the respondent in this matter. It is not necessary to set out all the relevant legal principles as they are carefully canvassed in those submissions. However, a number of specific matters were raised on behalf of the appellant in this matter and addressed by the respondent in reply.

10. The first matter raised was that the Magistrate had failed to take into account the intoxication of the appellant as a mitigating factor. In the course of the sentencing remarks, the Magistrate referred to alcohol as being a significant issue for the appellant and said that the Pre-Sentence Report suggested that the appellant was someone who had a drinking problem that was largely out of control.

11. In my view, s 342 of the Act requires that the sentencing Court have regard to the factors listed in that section. However, in the case of a number of factors, that is all the section entails. These factors can point to a greater or lesser sentence depending on the circumstances. In relation to the requirement to take into account whether a person was affected by alcohol and the circumstances in which the person became so affected, it is open to the sentencing Judge or Magistrate to take intoxication as either a matter of aggravation or mitigation, depending on the circumstances of the case. It was taken into account. I am not persuaded that, on accepted principles, there has been a miscarriage of the Magistrate's discretion in relation to the application of this consideration.

12. The second matter raised by the appellant concerns the allegation that the sentence was too harsh, in the sense that it imposed 36 periods of periodic detention in lieu of nine months' imprisonment. It is evident from the sentencing remarks that the Magistrate gave serious consideration as to whether to impose a custodial sentence of nine months imprisonment. In view of that, the sentence imposed was clearly of lesser severity.

13. The fact that Mr Lenaghan had pleaded guilty on the first occasion was taken into account by the Magistrate as the principal mitigating factor. The Magistrate said that this was the only available mitigating factor that would allow him to deal with Mr Lenaghan other than by imposing a full time custodial sentence. The Magistrate pointed out that Mr Lenaghan was entitled to the benefit of that early plea and that therefore a discount must be applied to the sentence.

14. It is said that the application of the discount by the Magistrate, so that one could reason from the nine month period of imprisonment to the 36 periods of periodic detention, was not transparent. In my view, it is evident that there was a substantial reduction of the sentence and it is not necessary to spell out by reference to quantitative standards any specific weight, number or percentage significance which is to be given to that discount. This weighing process has obviously taken place in the course of the reasoning in the present case.

15. A further matter referred to by the appellant was the fact that the Magistrate did not address the issue of rehabilitation. It is evident that the Magistrate considered the Pre-Sentence Report. There is reference to the Report and its contents on a number of occasions in the course of the sentencing remarks. The Magistrate also expressed the view that there was some suggestion that reality had finally prevailed and Mr Lenaghan had begun to appreciate that alcohol, as well as violence, was a very serious issue for him. There is an indication in the Report, according to a letter from Mr Lenaghan's sister-in-law and based on the material given to the persons preparing the Report, that there had been some improvement in the drinking situation by Mr Lenaghan. In my view, the absence of any express reference in the Magistrate's decision to the fact of rehabilitation in the present case does not amount to a miscarriage of the Magistrate's discretion or result in any injustice.

16. Another matter referred to by the appellant is the submission that Mr Lenaghan was in fact sentenced on the basis of a more serious charge, which may have been open on the evidence, rather than the charge which was actually made: See The Queen v De Simoni (1981) 147 CLR 383. As the respondent points out, at the outset of the sentencing remarks, the Magistrate points out that Mr Lenaghan is not charged with assault occasioning actual bodily harm. However, the Magistrate went on to say that it was clear from the Statement of Facts that Mr Gardner suffered a number of physical injuries and referred to him no doubt having suffered a degree of psychological injury. In my view, these latter remarks are by way of clarification and description as to what happened but they do not indicate that the Magistrate had lost focus on the actual charge that was made and imposed the sentence on that basis.

17. It is also said that there was no evidence that Mr Gardner suffered a degree of psychological injury as a result of the completely uncalled-for attack. In my view, these are additional remarks and do not go to affect the exercise of the Magistrate's discretion. In any event, it was open, in my view, on a common sense approach to the facts, for the Magistrate to take the view that some degree of psychological upset, concern or injury, would have followed as a consequence of the attack and this was a matter taken into account when the Magistrate addressed himself to the actual charge.

18. It is also said that there was an error in the Magistrate referring to Mr Lenaghan as a drunk and violent man. Having regard to the evidence as to Mr Lenaghan's drinking, the Pre-Sentence Report and his Criminal History, in my view, these remarks are not outside the ambit of a reasonable exercise of the discretion by the Magistrate. They indicate a pattern of conduct over a period of many years and, in this case, the record can be described as very serious. The tendency of Mr Lenaghan to violence is clearly shown by the previous incidents, which were referred to in the list of prior convictions.

19. There was also a point raised on behalf of the appellant to the effect that Mr Lenaghan was not asked by the Magistrate as to whether he consented to an order for periodic detention. Section 6(1)(f) of the Periodic Detention Act 1995 (ACT) states that a Court shall not make an order for periodic detention unless the Court is satisfied that the offender consents to such an undertaking. The Magistrate had before him the Pre-Sentence Report, which, as I have indicated, stated that Mr Lenaghan consented to a periodic detention order. This is a sufficient written indication of consent.

20. I was referred to the decision of Spender J in the case of Sales v Shakespeare [2001] ACTSC 49 at [10], however, that case was quite different to the present case and there is no reference in Spender J's decision to the contents of the Pre-Sentence Report that had been obtained in that case, in particular, as to whether the Pre-Sentence Report indicated Mr Sales' consent or lack of consent to an order for periodic detention.

21. There is no requirement, contrary to what appears to have been indicated by Spender J, that it is necessary for the Court to ask an offender whether he or she consents to such an order being made in circumstances where the Pre-Sentence Report indicates the offender's consent. The Pre-Sentence Report is put before the court on the basis of assisting and putting before the court all relevant matters, including all mitigating or discounting factors which can be taken into account. In the Pre-Sentence Report, as I have already indicated, the officers responsible state that Mr Lenaghan consents to a periodic detention order. In these circumstances, I do not consider that there has been a miscarriage of a discretion or any error of law by the Magistrate in being satisfied that the offender consented to undertaking such an order. There is no indication that the Magistrate was not so satisfied, having regard to all the available evidence.

22. Having regard to these circumstances, and giving a fair reading to what I consider to be the balanced remarks of the Magistrate, I am not persuaded in this case that there has been any error that warrants review or appeal so far as the sentence is concerned.

23. There is one final matter to which I wish to refer. In the course of the decision, the Magistrate states:

"The incident was not one that might loosely be described as a matter of a domestic nature which may or may not require some different form of resolution but is an attack upon an innocent member of the community who had no reason to suspect that he was ever likely to be the subject of the assault to which he was subjected."

24. In my view, there is no broad general distinction between violence of a "domestic" nature and other forms of violence. It would be quite misleading if this passage in the Magistrate's remarks were to be read to support any such distinction, such that one could consider that a domestic violence situation was somehow different from an attack upon another innocent member of the community. No doubt the learned magistrate intended to convey that the violence in this case was serious because it was random and not directed to any personal connection with Mr Gardner, as a consequence of which the community needs to be protected by not being subjected to random violence on these occasions. I make these remarks to indicate that the sentencing comments of the Magistrate should not be taken to convey any distinction of the type that I have indicated. Domestic violence is extremely serious and cannot be treated as a lesser matter because of family or relationship tensions that might explain why it occurred. In many cases, it is a more insidious and damaging form of violence.

25. Accordingly the appeal in the present case is dismissed. There is no order as to costs. The next period of periodic detention is to commence on Friday 22 July 2005.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Hon Justice Tamberlin.

Associate:

Date: 5 August 2005

Counsel for the Appellant: Mr Bevan

Solicitor for the Appellant: Baker Deane and Nutt

Counsel for the Respondent: Mr D Morters

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

Date of hearing: 15 July 2005

Date of judgment: 15 July 2005